Raila team puts together ‘tight’ case to save BBI

Monday, May 17th, 2021 00:00 | By
Building Bridges Initiative team lawyer Paul Mwangi. Photo/PD/FILE

Opposition leader Raila Odinga’s legal team was yesterday putting together a watertight case against the High Court ruling that declared the Building Bridges Initiative (BBI) process unconstitutional.

The team, led by lawyer Paul Mwangi, told People Daily it expected to file the case at the Court of Appeal either today or tomorrow while exuding confidence that it will overturn last Thursday’s High Court ruling that threw the BBI campaign into disarray.

Mwangi, whose team is also representing the BBI Secretariat co-chairs Junet Mohamed and Dennis Waweru, said they will challenge “every aspect” of the High Court ruling.

“I can assure we have a water tight case; the judgment is fundamentally flawed,” Mwangi said on phone.

He hinted that his team will rely on a High Court ruling delivered by Justice Wilfrida Okwany to the effect that the resignation of some Independent Electoral and Boundaries Commission members did not invalidate the composition of the polls body.

“The IEBC has all along been operating on the strength of a High Court order by Justice Okwany, everything they have been doing has been on the authority of the court,” said Mwangi.

In her ruling, Justice Okwany had ruled that the former commissioners never wrote to the appointing authority to indicate their resignation but rather did so through a press release to media houses.

The IEBC, through Chairman Wafula Chebukati, has also indicated it will appeal the ruling once it dispenses with the Bonchari and Juja by-elections set for today.

The government, through Attorney General Kihara Kariuki, is separately expected to file an appeal.

By the time of going to press, it was not clear whether the appeal had been filed, with Solicitor General Ken Ogeto, who had filed a notice of appeal at the weekend, unavailable for comment.

The government’s case, according to a senior lawyer familiar with the AG’s petition, is premised on the argument that the President, both as Head of State and as a citizen, has a constitutional right to instigate and promote constitutional changes through popular initiative.

Ordinary citizens

The lawyer had told People Daily that while they don’t expect the Court of Appeal to quash the whole decision because of what he described as “its solidity of argument and cogency,” they hope that it will overturn some of the findings.

“We are fully aware it will be a tough legal process but we hope that the Court of Appeal judges will read the Constitution with wider lenses and appreciate the spirit of the Bill and circumstances under which it is being enacted,” said the lawyer who requested anonymity.

The lawyer said they intend to convince the judges that “the decision that the President violated the Constitution was irrational and not subject to litigation.”

That the ratification by the county assemblies and endorsement by more than one million Kenyans is a demonstration that ordinary citizens owned the document.

“And that the government participation in promoting the Bill was meant to support the aspirations of Wanjiku (the ordinary Kenyan). These are some of the issues we are seeking to raise in court,” he said.

This is after the bench led by Justice Joel Ngugi, on May 13, in a lengthy judgment, declared that the BBI process was illegitimate as it was an initiative of President Kenyatta aimed at amending the Constitution in contravention to the law.

“1st respondent (AG), being dissatisfied with the decision of the five judge-bench consisting of Justices Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka, intends to appeal to the Court of Appeal against the whole of the said decision,” the AG says in the notice of appeal.

According to the court papers, the AG wants the court to issue a stay order against the judgment pending the hearing and determination of the appeal.

“The court be pleased to order a stay of execution of the judgment, decree and any other consequential orders delivered on May 13, 2021, by the High court pending the hearing and determination of the application for stay under Rule 5(2)(b) of the Court of Appeal rules,” says the AG.

In an affidavit sworn by Ogeto, the AG argues that no prejudice will be occasioned to economist David Ndii and other petitioners in the event the Court of Appeal stays the judgment.

Yesterday, National Assembly Leader of Majority Amos Kimunya explained that as long as the notice of appeal was issued, the government has 14 days to ensure that all the paperwork is done.

“We cannot rush this process because we have to do this well,” he said.

But at a press conference, the Linda Katiba Movement, which lodged the anti-BBI case, demanded that all State officers who participated in the process and used tax payer’s money be sacked and surcharged.

The group said MPs should be prosecuted and made to refund the allowances awarded during the sittings in which they debated the BBI Bill.

Speaking on behalf of the group, Narc Kenya party leader Martha Karua said the court affirmed that the BBI project was a private affair and hence tax payers’ money cannot be used it.

Epitome of impunity

“The Constitutional Court sent an unambiguous signal that Kenyan politicians, beginning with the President, must submit to constitutionalism,” Karua told a press conference in Nairobi.

In a statement, the group termed the Jubilee administration an “epitome of impunity”.

“The Jubilee administration epitomises unsavoury attributes of state-led impunity, malfeasance, cronyism, corruption, nepotism and tribalism,” Karua said.

The group said the court outcome heralded restoration of political sanity and defence of the rule of law.

“The ruling restored and reasserted the sovereignty of the people of Kenya and supremacy of the Constitution,” stated the group.

According to Karua, the 2010 Constitution is a watershed people-centered set of values and principles supposed to provide a framework for good governance.

“The Constitution is not responsible for Kenya’s fractious politics and state excesses. Impunity is. Kenya’s democratic gains must, therefore, be safeguarded,” she added.

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